JUDGMENT OF THE ECJ: SHIRLEY MCCARTHY V SECRETARY OF STATE FOR THE HOME DEPARTMENT, CASE C-434/09
A full update on this important case will follow. You can read a summary of this important judgment here. The full judgment is available here. This case involved a preliminary reference from the UK Supreme Court on the following issues:
1. Is a person of dual Irish and United Kingdom nationality who has resided in the United Kingdom for her entire life a “beneficiary” within the meaning of Article 3 of Directive 2004/38 …?
2. Has such a person “resided legally” within the host Member State for the purpose of Article 16 of [that] directive in circumstances where she was unable to satisfy the requirements of Article 7 of [that directive]?’
The Court did not find in favour of the Applicant and in short, concluded as follows:
– Article 3(1) of Directive 2004/38 must be interpreted as meaning that that directive is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State.
– Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States.
While we are still digesting this decision, it obviously raises a number of questions following the decision in Zambrano that also addressed the rights of Union citizens. There appear to be a number of contradictions between the two decisions and you may be interested to look at paragraphs 49 to 50, where Zambrano is specifically considered.
A further fuller update will follow very shortly!
Rebecca Keatinge, Brophy Solicitors